The Ultimate Guide to Evicting Bad Tenants

PublishedMay 8, 2023

13 minute read

As a Colorado landlord, you owe an immense responsibility to your tenants. Renting is a two-way street, however, and your tenants have certain legal obligations to you as well. If a tenant does not pay rent or damages your property, eviction may be the only course of action. Follow our step-by-step guide to evict bad tenants legally and quickly.

Bottom Line

You cannot evict a tenant during the term of their lease unless you have a legal reason and follow the proper steps listed in the statute.

What is an Eviction?

A forcible entry and detainer (FED) is the legal term for the eviction action in the court. This is a process to return the rental property from the renter, or tenant, to the owner, or landlord.

The Forcible Entry and Detainer Act guides Colorado evictions, and it defines the grounds and process under which landlords can seek to remove tenants from their property. The Act distinguishes between forcible entry, forcible detainer, and unlawful detention.

Although an eviction action is commonly called an “F.E.D.” (for forcible entry and detainer), the vast majority of landlord-tenant cases are filed under the unlawful detention provisions of the statute. Colo. Revised Statutes § 13-40-104

When Can I Legally Evict a Tenant?

You cannot legally evict a tenant before the tenant’s lease has expired unless you can prove the tenant violated part of the lease agreement. This is the case regardless if the tenant has a fixed-term lease or a periodic rental agreement (one that automatically renews at the end of each term.)

Without a legal reason, you must wait until the lease expires. In these circumstances, you have to formally serve the tenant with a notice to quit (or notice to move out) before their lease is up. The notice must be in writing, and it must be given to them a minimum number of days before the lease expires. The length of the required notice depends on the type of tenancy. C.R.S. § 13-40-107(1)

For the sake of brevity, we’re going to focus primarily on evictions “with cause.”

What are the Grounds for Eviction?

The overwhelming majority of eviction cases are filed for one of the following reasons:

The tenant has not paid rent.
The tenant has violated a condition of the lease agreement. C.R.S. §§ 13-40-104(1)(d) and (e)
The tenant has proven himself or herself unfit for rental.
The tenant has failed to move out after the lease has expired. C.R.S. § 13-40-104(1)(c) (2022)

Let’s explore these grounds for eviction in more detail.

Evicting a Tenant For Not Paying Rent

Life happens. Sometimes your tenants’ financial circumstances change unexpectedly and they need a few extra days to pay rent. Maybe you can afford to give them a grace period this one time, especially if the tenant usually pays on time.

However, you, too, have bills to pay. Landlords commonly use rent money to help cover the property’s mortgage. If the tenant falls significantly behind on rent, you run the risk of falling behind on mortgage payments.

You Must Serve a Demand

If rent is the problem, your first step is always to serve the tenant with a demand stating that he or she is delinquent in rent payments. The notice must inform the tenant that he or she has two options: pay the full amount of rent owed within a specific time period, or move out.

If the tenant remains behind on rent after the time allotted has passed, you can initiate formal eviction proceedings.

New Protections for Colorado Renters

It’s important to keep in mind that several policies related to eviction for nonpayment of rent changed in 2021.

A landlord can still evict a tenant for not paying rent. However, if the tenant can pay all outstanding rent at any time before a judge signs off on the eviction, landlords are required to accept the money and cancel the proceedings.

This only applies if the tenant pays the full amount owed. Landlords are not obligated to accept partial payments.

Previously, there was a 10-day “cure” period for tenants to catch up on rent. The most recent legislation has eliminated any particular deadline.

Additionally, as of October 2021, a landlord cannot evict a tenant solely because the tenant has not paid late fees.

Evicting a Tenant for a Lease Violation

The rules in your lease agreement are there for a reason. If a tenant violates those rules, you should immediately bring the breach to their attention and give them the opportunity to resolve the problem.

Common lease violations may include:

damaging rental property
keeping pets in pet-free properties
surpassing the maximum number of residents allowed to live living in the rental property

Serving Notice for a Lease Violation

If a lease violation is the problem, you must first issue a written Demand for Compliance informing the tenant of their violation. This demand must specify how long the tenant has to comply with the lease provision in question. The length of time a tenant has to resolve the issue or leave the property depends on their type of tenancy.

If your tenant rectifies the problem on time, you may not continue the eviction process.

However, if the tenant fails to resolve the violations on time, then you can go ahead with the eviction by serving notice. Notices terminate tenancy and do not provide the ability to cure.

Evicting a Tenant for Being Unfit

First, let’s talk about what being “unfit” means in the terms of evicting a tenant. In order for a tenant to be unfit, they have to have committed a “substantial violation,” which can be misleading. I’ve found that landlords often mistakenly think a substantial violation is when a tenant has failed to comply with something in the lease.

For the purposes of Colorado eviction law, a substantial violation means any act or series of acts by the tenant, or their guest or invitee, that occurs on or near the premises and endangers people or property.

So, someone who commits a violent crime or a drug-related felony would be considered to have substantially violated the lease. C.R.S. § 13-40-107.5

In other words, while a tenant may not have explicitly broken a rule listed in the rental agreement, their actions nonetheless present a clear threat to their co-tenants, neighbors, and your interests as a property owner, which makes them “unfit.”

Under Colorado law, you can evict a tenant for this type of conduct — even if the lease does not expressly prohibit it.

Serving Notice for a Substantial Violation

As with any type of eviction, you must first serve the tenant with the appropriate notice. The notice must describe the property, specify the time when the lease will end, and state the grounds for termination. You, or your agent or attorney, must sign the notice. C.R.S. § 13-40-107.5

If any of the above elements are missing from the notice, the court probably won’t grant your eviction.

What Comes Next

Your tenant will have three days to leave your property after you serve him or her with a notice to quit.

In the case of a substantial violation, you are not required to issue a demand for compliance before terminating the lease.

Proving a Substantial Violation in Court

You should be prepared to prove that your tenant violated the lease by a preponderance of the evidence. This means it is more likely than not that the tenant committed a substantial violation.

The Colorado Supreme Court has held that a landlord must show that the tenant actually committed a substantial violation “- not merely that the owner had reasonable grounds to believe it was violated.” Miles v. Fleming, 214 P.3d 1054, 1058 (Colo. 2009)

OK, we’ve covered the when and why of Colorado evictions. Now, let’s discuss the how.

Preparing for Eviction

Colorado law outlines very specific steps you must follow to remove a tenant from your property. Skipping even one of them could result in the judge throwing out your case and you losing significant time and money. Follow these steps for a successful eviction:

Step 1: Giving Notice

You can only evict a tenant after he or she no longer has the right of possession. For that to happen, you must provide proper notice of the breach.

In most cases, the notice must include an opportunity for the tenant to resolve the issue.

Here are some of the most common notices:

Notice to Quit. A notice to quit is normally used to terminate a holdover tenancy or a month-to-month lease. It can also be used to not renew a lease at the end of a lease term. This type of notice must be delivered before the beginning of the next rental period. The timeline for a notice to quit is either 3, 21, 28, or 91 days, depending on the length of the rental term and how much notice is required in the lease. C.R.S. 13-40-107
Notice to Quit for Substantial Violation. As we mentioned above, a substantial violation is generally a violent or anti-social act that makes the tenant unsuitable to rent. A substantial violation only requires three days of notice before terminating the tenancy.
Demand for Compliance. This warns the tenant they will be evicted if they do not comply with the terms of the lease. This notice is generally used when the tenant has gotten an unauthorized pet or roommate.
Demand for Rent. This is served when a tenant is behind on rent.
Demand for Possession. This notice should only be used after a property has been sold following a foreclosure or the probate of an estate. In probate, the estate’s personal representative would step into the shoes of the landlord or owner and would be required to follow the same rules.

Eviction Notice Requirements

One of the most common eviction mistakes landlords make is giving improper notice. For example, state law in some situations requires a landlord to give a tenant the option to “cure” the problem or vacate the property.

If your notice simply states that your tenant has 10 days to move out, and does not include the option to pay rent or comply with the lease, the eviction will likely fail.

Eviction Notice Period

If you want to evict a tenant for nonpayment of rent or an alleged lease violation, you must first serve the tenant with a 10-day notice to comply or quit (move out.)

Sometimes called a demand for compliance or a demand for rent, this lets the tenant know that he or she has time to fix the problem or get out. C.R.S. § 13-40-104(1)(d)

If the tenant does not remedy the lease violation or get their rent current before the end of the 10-day period, you may then commence eviction proceedings. C.R.S. § 13-40-104(1)(d) (2022)

Exceptions to the 10-Day Notice Period

A three-day demand is required in a non-residential or employer-provided housing agreement. A five-day demand is required in an exempt residential agreement. An “exempt residential agreement” refers to a lease or rental agreement for a single-family home by a landlord who:

owns five or fewer single-family rental homes, and
states in the lease agreement that the required 10-day notice period does not apply to the rental unit.

C.R.S. § 13-40-104

Other Eviction Notice Requirements

Before you can ever serve an eviction notice, you must serve a demand for compliance or possession. A demand must be written in such a way that the tenant can fully understand how they have breached the lease agreement, what they can do to remedy the breach, and the repercussions of not doing so.

For example, the U.S. District Court for the District Court of Colorado held in House of Pancakes, Inc. v. Albarghouthi, 2007 U.S. Dist. (D. Colo. Sept. 6, 2007) that a landlord’s demand for compliance or possession was insufficient because the landlord did not adequately identify the grounds for termination of the lease.

Serving the Eviction Notice

You have a few options here. First, you can serve the demand or notice directly to the tenant. You can give the notice to a tenant’s family member as long as they’re older than 15 and reside at the property with the tenant. Finally, if no one is home, you can post the notice on the property in a conspicuous place, like the front door. C.R.S. § 13-40-108

The demand for possession required by C.R.S. § 13-40-104 must:

be in writing
state the grounds alleged for the right to possession
describe the property
state the “time” when the property must be delivered to the landlord, and
be signed by the landlord or the landlord’s agent C.R.S. § 13-40-106

Step 2: Filing the Lawsuit

OK, so if your tenant doesn’t resolve the problem in the required amount of time, you’re ready to move forward with the eviction lawsuit. You do this by filing a complaint with the appropriate county court.

The complaint must describe the property, the grounds for recovery, the tenant’s name, and a request for recovery of possession.

The complaint may also specify how much rent is due, the rate at which it is accruing, the amount of damages due, and the rate at which they are accruing. It also may include a request for rent due or to become due, present and future damages, costs, and any other relief to which you may be entitled. C.R.S. § 13-40-110

Step 3: Serving the Complaint

The tenant must be served with the proper court summons and complaint. You can have the sheriff’s department service the tenant or someone else who’s over the age of 18 as long as they’re not a party to the action.

You May Also Personally Serve the Tenant

If you personally serve the tenant with the summons, you must do so at least seven days before the day the tenant is set to appear in court. C.R.S. § 13-40-112(3)

As with the notice to quit, you may leave the summons in a conspicuous place on the property only after you have made a diligent effort to personally serve the tenant.

What is an Example of Diligent Effort?

This may vary depending on your jurisdiction. As an example, an Adams County district court has held that a diligent effort means exhausting all reasonable means to locate the defendant. This includes at least more than one attempt to personally serve the tenant and may also include efforts to locate the defendant’s employer, utility companies, neighbors, friends, or relatives in the area. Ortega v. Pappas, No. 81CV0562 (Adams County District Court, 1982)

Step 4: The Tenant Gets the Chance to Respond

Once the tenant has been served, he or she will have an opportunity to respond to the allegations in the complaint. The tenant may file an answer on or before the return day, as long as the answer is filed by the end of the business day.

The answer must admit or deny the allegations of the complaint and present any potential defenses. C.R.S. § 13-40-113(1)

Step 5: The Hearing is Set

Typically, the county court will schedule a hearing no sooner than seven days, but not more than 10 days, after the tenant files an answer.

If the tenant does not appear at the hearing, the court will most likely enter a default judgment in your favor.

If the tenant does appear, you both will have the opportunity to make an opening statement, present witnesses and other evidence, cross-examine opposing witnesses, and make a closing argument.

As the landlord, the burden of proof is on you to show that eviction is appropriate.

Step 6: The Court Issues a Writ of Restitution

If the court finds in your favor, you may request a writ of restitution 48 hours after the hearing. A writ of restitution is an order to remove the tenants and their possessions from the property.

After the writ is issued, the landlord will schedule an appointment with the sheriff. In some counties, the sheriff will give the tenant a 24-hour notice before carrying out the eviction. In other places, no additional notice or warning is required.

The writ of restitution cannot be entered until 48 hours after the judgment for possession. It can not be executed for at least 10 days after the judgment is entered. C.R.S. § 13-40-122(1); Dulmaine v. Reed Bldg. Co., 46 Colo. 469, 104 P. 1038 (1909).

A writ of restitution automatically expires 49 days after it is issued. C.R.S. § 13-40-115(3). A writ of restitution can be re-issued.

Step 7: Removing the Tenant

The tenant is technically required to move out after the judgment. However, they have until the writ is executed to do so. When the writ is executed, the sheriff will remove the tenant if they have to, and the landlord will remove the items at the sheriff’s direction.

The judges used to tell tenants that they had 48 hours to move out, but that was before the 10-day execution time frame. So now, the tenants really do have that 10 days. However, most sheriffs are scheduling closer to the 49 days.

In most cases, the tenant will have 48 hours to leave the premises with all their belongings. If the tenant remains on the property, the landlord can schedule a time for eviction with the county sheriff.

It is never legal in Colorado for the landlord to force the tenant to move out of the rental unit. In fact, the tenant can sue you for even trying. Only a law enforcement officer has the authority to forcibly remove a tenant.

Handling the Tenant’s Property

Colorado law states that a landlord cannot be held civilly or criminally liable “for any act or omission related to the removal of a tenant’s personal property” as long as the landlord complies with the sheriff’s directions during the execution of a Writ of Restitution.

The statute also makes clear that a landlord is not legally obligated to store or maintain any of the tenant’s belongings. However, even if you do decide to store the tenant’s property, you still cannot be held liable for any loss or damage. Additionally, you may charge the tenant for the reasonable cost of the storage. C.R.S. § 13-40-122(2) through (4)

Know the Defenses to Eviction

In an eviction proceeding, the tenant has the opportunity to present defenses against the eviction. If the court determines the tenant has not breached the lease, or that you have not properly followed all the legal steps required of a landlord, then the tenant may have the right to stay.

In this section, we’ll discuss some common defenses in Colorado eviction cases and how to prepare for them.

Illegal Retaliation

Tenants have certain rights in Colorado, including the right to complain to the landlord or a governmental agency about a health or safety violation. It is illegal for a landlord to evict, or threaten to evict, a tenant for exercising that right. C.R.S. § 38-12-509

If the court finds that you have filed a retaliatory eviction lawsuit, you could be on the hook for a up to three months’ periodic rent or three times the tenant’s actual damages (whichever is greater) plus reasonable attorney fees and costs.

Self-Help Eviction

Landlords are prohibited from resorting to certain extreme measures in an effort to force the tenant out of the unit.

No matter how frustrated you may feel, you may not lock the tenant out of the rental property or shut off essential services, such as heat, running water, hot water, electricity, or gas. C.R.S. § 38-12-510

“Self-help” evictions are allowed in Colorado only if the lease specifically permits it. Landlords may not “unilaterally re-take possession of the property” unless the lease authorizes them to do so. Abel v. Lord, 2017 Colo. Dist.

Landlord’s Failure to Repair the Premises

Colorado landlords have a legal duty to maintain a safe, habitable environment for their tenants. If you have failed to uphold this obligation as a landlord, your tenant may be excused from paying rent.

In these circumstances, your tenant would have the right to file a counterclaim to your eviction lawsuit. The tenant may receive damages to offset the rent due.

Examples of an unfit rental unit include:

mold inside the unit
a rodent infestation
a leaking roof causing damage inside the residence
faulty plumbing or gas facilities. C.R.S. § 38-12-505

Landlord’s Failure to Follow Proper Eviction Procedures

If, as a landlord, you fail to follow proper eviction procedures, an eviction cannot legally take place. If the tenant is still removed from the property, you could be responsible for damages for a wrongful eviction.

A Colorado Wrongful Eviction

A Denver County landlord posted a “demand for possession” on his rental property after it was sold. Both tenants of the home were named in his notice. However, the landlord failed to include the name of the tenant renting the home’s basement apartment.

The basement tenant, who was recovering from surgery, returned home from the hospital to find all of her belongings boxed up and placed on the lawn. She subsequently filed a wrongful eviction lawsuit against the landlord.

The court determined that the landlord had known the basement apartment was occupied and that the tenant was hospitalized. Despite this knowledge, he had never gone into the basement apartment to investigate.

The court awarded the tenant $1,000 in damages for wrongful eviction and $2,000 for outrageous conduct. The landlord appealed, but the court found that:

“As a month-to-month tenant, [Defendant] was entitled to 10 days’ notice, in writing, before eviction. [Defendant] was given no notice of the eviction. Thus, the trial court properly submitted the issue of wrongful eviction to the jury.” Danyew v. Phelps, 676 P.2d 707, 708 (Colo. App. 1983)

Domestic Violence Victims

Colorado landlords may not evict a tenant solely because the tenant is a victim of domestic violence, stalking, domestic abuse, or unlawful sexual behavior.

Landlords also may not evict a tenant for calling the police or other emergency assistance in response to a domestic violence incident.

However, I’d like to point out that while a tenant cannot be evicted solely because he or she is a victim of domestic violence, the tenant may still be evicted if there is an independent reason to do so. For example, the tenant can still be evicted if he or she stops paying rent after their abuser has been kicked out.

Speak with an Eviction Attorney Today

Eviction is a drastic remedy. Courts do not take lightly the process of removing someone from their home. One misstep in the Colorado eviction process could cost you thousands of dollars and leave you to deal with a problem tenant. Call 303-688-0944 today to begin your case assessment with R&H’s highly skilled eviction team.